Excerpt:.....can they replace statutory rules.
- 3. to bring home the charges to the appellants and the co-accused niranjan dehury, the prosecution bad examined thirteen witnesses. abdul razak under section 302 of the code, the learned standing counsel has been fair in contending that the charge under section 302 read with section 149 of the code against the appellants niranjan rai das and makar jena had not been established and the order of conviction is not well-founded. on the 16th august, 1978, the necessary warning was given again by the magistrate who had disclosed his identity and after being satisfied that they were about to make, the confessional statements recorded exts. 25 and 27 and appended the certificates at the end stating the reasons as to why he was satisfied that the..........him. the appellants makar jena,sk. abdul razak, sk. raheman and niranjan rai das along with the co-accused niranjan dehury stood charged under section 302 of the indian penal code (for short, the 'code') for having committed the murder of the jail warder mayadhar sahu and they also stood charged under section 302 read with section 149 of the code with two other persons, namely, gopal ray and samar ray, who were said to be absconding for having committed the murder of mayadhar sahu in furtherance of their common object. besidei, they stood charged under section 224 of the code for having escaped from the lawful custody while lodged in the sub-jail at jajpur. the appellants sk. abdul razak and sk. raheman besides the appellant niranjan rai das were under-trial prisoners while the appellant.....

Judgment:

B.K. Behera, J.

1. These appeals arising out of the same judgment and order have been heard together and will be governed by this common judgment. The appellants along with the co-accused Arun Chandra Bhoi, a Jail Warder, stood trial in Sessions Trial Nos. 100 of 1980 and 16 of 1981 arising out of the same case and clubbed together. The appellant Sk. Raheman has preferred Criminal Appeal No. 158 of 1981 and also Jail Criminal Appeal No. 183 of 1981 against the same judgment and order of conviction and sentence passed against him. The appellants Makar Jena,Sk. Abdul Razak, Sk. Raheman and Niranjan Rai Das along with the co-accused Niranjan Dehury stood charged under Section 302 of the Indian Penal Code (for short, the 'Code') for having committed the murder of the Jail Warder Mayadhar Sahu and they also stood charged under Section 302 read with Section 149 of the Code with two other persons, namely, Gopal Ray and Samar Ray, who were said to be absconding for having committed the murder of Mayadhar Sahu in furtherance of their common object. Besidei, they stood charged under Section 224 of the Code for having escaped from the lawful custody while lodged in the Sub-Jail at Jajpur. The appellants Sk. Abdul Razak and Sk. Raheman besides the appellant Niranjan Rai Das were under-trial prisoners while the appellant Makar Jena and the co-accused Niranjan Dehury as convicts were undergoing the sentences of imprisonment. The appellant Antarjyami Patra and the co-accused Arun Chandra Bhoi, both Jail Warders, stood charged under Section 223 of the Code for having negligently suffered the appellants Mrkar Jena, Sk. Abdul Razak and Sk. Raheman besides the co-accused Niranjan Dehury from their lawful confinement being legally bound to keep them in confinement as public servants.

2. The incidents had taken place between 9.00 p. m. and 12 00 midnight on the 9th August, 1978, in the Sub-Jail at Jajpur. The case of the prosecution was that the aforesaid under-trial prisoners and convicts along with Gopal Ray and Sumar Ray broke open the entrance door of Ward No. 1 in which they had been confined and after some of them killed the Warder Mayadhar Sahu (to be hereinafter referred to as the 'deceased'), escaped through the Sub-Jail gate which was in charge of the two accused Jail Warders. On the basis of the first information report lodged by the Superintendent of the Sub-Jail, as per Ext. 22, investigation followed and the aforesaid convicted persons and the under-trial prisoners who had escaped were caught by the police officers. On the completion of investigation, charge-sheets were placed and the appellants with the co-accused Niranjan Dehury were prosecuted being charged as stated above.

3. To bring home the charges to the appellants and the co-accused Niranjan Dehury, the prosecution bad examined thirteen witnesses. The appellants, who stood charged for the commission of murder, had denied the charge. It would appear from the statements of the appellants, who stood charged under Section 224 of the Code, that they had admitted to have escaped from lawful custody. The two Jail warders, who stood charged under Section 223 of the Code, had denied the accusations made against them. The learned trial Judge found the appellants Sk. Abdul Razak and Sk. Raherman to be guilty of the charge of murder and convicted them under Section 302 of the Code or in the alternative, under Section 302 read with Section 149 of the Code and sentenced each of them to under go imprisonment for life Each of them was also convicted and sentenced under Section 224 of the Code to undergo rigorous imprisonment for a period of two years concurrently with the other sentence. The appellant Niranjan Rai Das and the co-accused Niranjan Dehury were convicted under Section 302 read with Section 149 of the Code and sentenced to undergo imprisonment for life. They were also convicted under Section 224 of the Code and sentenced to undergo rigorous imprisonment for a period of two years concurrently with the other sentence. While one of the two Jail Warders, namely, Arun Chandra Bhoi, was found not guilty of the charge under Section 223 of the Code, the appellant Antarjyami Patra was found guilty of the charge under Section 223 of the Code and sentenced to suffer simple imprisonment for a period of two years.

4. The learned counsel appearing for the appellant Antarjyami Patra has contended that no case of negligence had been made out against this appellant and he had improperly been convicted. The learned counsel for the other appellants have not assailed the order of conviction recorded against them under Section 224 of the Code. They have, however, contended that the charge of murder had not been established against any of them. Mr. D. P. Sahu, the learned Standing Counsel, has submitted and in our view, fairly so, that no case had been made out against the appellant Antaryami Patra for commission of the offence punishable under Section 223 of the Code. While supporting the order of conviction passed against the appellants Sk. Raheman and Sk. Abdul Razak under Section 302 of the Code, the learned Standing Counsel has been fair in contending that the charge under Section 302 read with Section 149 of the Code against the appellants Niranjan Rai Das and Makar Jena had not been established and the order of conviction is not well-founded. He has submitted that the charge under Section 224,of the Code against the appellants who have been convicted thereunder had been established by clear and cogent evidence.

5. It admits of no doubt from the prosecution evidence that some of the appellants and the co-accused Niranjan Dehury were the under-trial prisoners while the others were the convicts undergoing the sentences of imprisonment and they were thus in lawful custody in the Sub-Jail at jajpur at the relevant time. Taking into consideration the prosecution evidence and in particular, that of P. Ws. 1, 9, 11 and 12 and the entries, Exts. 16 to 18, made in the Admission Register of the under-trial prisoners showing admission of the appellants Niranjan Rai Das, Sk. Abdul Razak and Sk. Raheman and the entries, Exts. 19 and 20, in the Convicts Register showing that the appellant Makar Jena and the co-accused Niranjan Dehury were undergoing terms of imprisonment and the statements of the appellants who stood charged under Section 224 of the Code, the learned Sessions Judge has held, for the reasons recorded in paragraph-9 of the judgment, that the persons charged under Section 224 of the Code had escaped from lawful custody. We see no reason to take a different view and as we have indicated earlier, even the learned counsel for the appellants have not assailed this finding recorded by the trial Court. The sentences passed against the convicted persons under Section 224 of the Code cannot be said to be severe in the circumstances of the case although the maximum prescribed term of imprisonment has been imposed on them.

6. With regard to the charge under Section 223 of the Code against the appellant Antarjyami Patra, one of the Jail Warders, it would be seen that there was no direct evidence against him to prove his culpable negligence and there was no direct evidence either as to the manner in which the persons charged under Section 224 of the Code escaped except the confessional statements of some of them which could not be treated as substantive evidence against this appellant and could be pressed into service to lend assurance to the conclusion of guile which could be rested on other evidence, if any. Regard being had to the positions of the Wards, the trial Court had concluded that it was not possible for the Warders to properly perform their duties during the night time. In the absence of marks of violence on the perimeter wall or on the ground out side it, the theory that the prisoners had climbed over the perimeter wall and escaped would be excluded and therefore, the trial Court was of the view that the prisoners who escaped must have done so through the main gate and therefore, the appellant Antarjyami Patra, who was on duty, had committed the offence punishable under Section 223 of the Code. As has been submitted on behalf of this appellant and fairly submitted by the learned Standing Counsel, no order of conviction against this appellant can be passed on a mere conjecture in the absence of tangible evidence to establish a charge under Section 223 of the Code. In order to attract the provision of Section 223 of the Code, there must be proof that the accused had suffered a person in lawful custody to escape and such escape must have been due to the negligence of the public servant. It . must be established that the accused had allowed the prisoner in custody to escape. Before a public servant can be convicted under this section, it must be shown that he was not only negligent but that, escape was due to the natural and probable consequences of this negligence. The escape of the prisoner should not be ton remote a consequence of negligence. In the absence of any proof of negligence on the part of this appellant, the trial Court went wrong in convicting him under Section 223 of the Code. The order of conviction and sentence passed against him must, therefore, be set aside.

7. As regards the order of conviction passed against the appellant Makar Jena and Niranjan Rai Das and the co-accused Niranjan Dehury who has not preferred any appeal against the order of conviction passed against him under Section 302 read with Section 149 of the Code, we find that after holding the appellants Sk Abdul Razak and Sk. Raheman guilty of the charge of murder on the basis of their confessional statements which found cotrobotation from the other evidence to which we would presently come, the learned Sessions Judge by drawing same unwarranted inferences and conjectures that while escaping with the other prisoners charged of they must have shared the common object with them for commission of the murder, held them to be guilty under Section 302 read with Section 149 of the Code by observing and holding thus :

'As regards the other prisoner accused persons, there is no direct evidence against them to connect them with the murder. The only circumstance against them is that ail of them escaped from the jail custody in the night of occurrence and the deceased was found lying dead near the latrine of the block where Ward No. 1 was situated. It is also proved as found above that accused Razak and Raheman the prisoners who escaped, assaulted the deceased and caused his death. It is the admitted case that 7 prisoners from the jail in the night of occurrence including the present prisoner, accused persons escaped. Such escape is not possible without any pre-plan. It is found that to facilitate the escape the accused Raheman and Razak inflicted injuries to the Warder on duty which resulted in his death. In such circumstances it is natural to infer that the accused Makat, Niranjan Dehury and Niranjan Rai Das, Razak, Reheman and 2 others had formed an unlawful assembly to commit an illegal act namely to escape from the lawful confinement. Further it is also reasonable to infer that in prosecution of the common object of the assembly, namely, to escape from the jail the accused persons Razak and Raheman committed murder of the deceased warder and each of the persons forming the unlawful assembly had the knowledge that murder would be committed in prosecution of their common object. la this view of the matter all the prisoners-accused persons are also liable under Sections. 302/149 I. P. C.'

8. If some convicted prisoners and the under-trial prisoners lodged in the same jail escaped after commission of murder with some other persons who also escaped from lawful custody, it should not readily be assumed without any other evidence, as had been done in this case, that all of them had shared the common object of committing the murder. The graver the offence, the higher should be the standard of proof. We regret to observe that the learned Sessions Judge was evidently obvious of the requirements of law in order to sustain a charge by the application of Section 149 of the Code. The order of conviction recorded against the appellants Niranjan Rai Das and Makar Jena and against the non-appealing convict Niranjan Dehuty under Section 302 read with Section 149 of the Cods is unwarranted and illegal.

9. When we were told at the hearing that the convict Niranjan Dehury had not preferred any appeal and it has been so reported by the High Court office, we have put the learned Standing Counsel to notice to address us as to whether the order of conviction passed against him under Section 302 read with Section 149 of the Code should not be set aside in exercise of the revisional jurisdiction of this Court and we would record our appreciation of the stand taken by the learned Standing Counsel that it is a fit case in which this Court should, in its revisional jurisdiction, set at naught the order of conviction recorded against the non-appealing convict Niranjan Dehury under Section 302 read with Section 149 of the Code when it has come to the notice of this Court that the order of conviction is not sustainable in law. The order of conviction against these three persons, namely, the appellants Niranjan Rai Das and Makar Jena and the non-appealing convict Niranjan Dehury under Section 302 read with Section 149 of the Code roust be set aside.

10. This takes us to the charge of murder against the two appellants Sk. Raheman and Sk. Abdul Razak. At the outset, we roust set aside the order of conviction passed against them by the application of Section 149 of the Code in view of the finding recorded by us chat the appellants Niranjan Rai Das and Makar Jena and the non-appealing convict Niranjan Dehury had not shared the common object with these two appellants and even assuming that the two absconding accused persons named in the earlier part of this judgment had shared the common object with these two appellants, the total number of culprits would coma down to four and therefore, Section 149 of the Code could have no application.

11. There thus remains for consideration the order of conviction and sentence passed against the appellants Sk. Raheman and Sk. Abdul Razak under Section 302 of the Code.

12. It admits of no doubt from the evidence of P. W. 5, the doctor who had conducted the autopsy over the dead body of the deceased as per his post mortem report (Ext. 29) that the death of the deceased was homicidal in nature. This finding recorded by the trial Court has not been assailed in these appeals. The learned counsel, for. the appellants Sk. Raheman and Sk Abdul Razak have submitted that the confessional statements of these two appellants were neither voluntary nor true and therefore, the order of conviction passed against them under Section 302 of the Code cannot be allowed to stand.

13. In the very nature of things and in the manner in which the deceased had been dons to death inside the Sub-Jail near about midnight, there would be no witness to the occurrence and there was none. The case against these two appellants has rested on the confessional statement of the appellant Sk. Abdul Razak (Ext. 27) and the confessional statement of the appellant Sk. Raheman (Ext 25). The trial Court has held that these two confessional statements were voluntarily and true and had received corroboration from other evidence. The statements of the appellants Makar Jena and Niranjan Rai Das recorded under Section 164 of the Code of Criminal Procedure could not be construed to be the confessional statements as these two persons had not admitted their guilt therein, as observed by the trial Court.

14. As regards the Exts. 25 and 27, the learned Trial Judge has held, on an elaborate discussion of the evidence of the Sub-divisional Judicial Magistrate (P. W. 3), that the confessional statements had been made by these two appellants voluntarily. As the evidence of this Magistrate would show, after these two appellants were produced before him on the 11th August, 1978, he had disclosed his identity to them, Have them the necessary warning, told them that if they made confessional statements, the same would be used against them and that they were not bound to make any confessional statements. He had ascertained from them as to whether they were about to make confessional statements voluntarily. He remanded both of them to judicial custody till the 14th August, 1978, giving them time for reflection before making any such statements. After they were produced on the date fixed, they were again cautioned and were told that they were not bound to make any confessional statements and that such statements, if made, would be utilised against them. He had disclose d his identity also on that day. The Magistrate remanded these two appellants to judicial custody till the 16th August, 1978, giving them further time for reflection before making any statements. On the 16th August, 1978, the necessary warning was given again by the Magistrate who had disclosed his identity and after being satisfied that they were about to make, the confessional statements recorded Exts. 25 and 27 and appended the certificates at the end stating the reasons as to why he was satisfied that the statements had been made voluntarily. As would appear from the evidence of the Magistrate, the confessional statements had been made by these two appellants as they were willing to speak out the truth owing to repentance. Section 164 of the Code of Criminal Procedure had been complied with by the Magistrate while recording the confessional statements. Distinguishing the principles laid down in AIR 1978 S. C. 1544 (Davendra Prasad Tiwari v. State of Uttar Pradesh), the learned trial judge has held that in the instant case, undoubtedly, these two appellants were in judicial custody and they had been produced from jail custody and not from police custody on the 14th and 10th August, 1978.

15. According to these two appellants who had made the confessional statements, they bad been assaulted by the police officers and the jail authorities for which they had made some statements which were not voluntary. No doubt, the appellant Sk, Raheman had multiple abrasions on his right hand and left back and the appellant Sk. Abdul Razak had five abrasions on his person as per the injury reports to which reference has been made in the trial Court's judgment. But these injuries have satisfactorily been explained by the prosecution through the evidence of the police officers, namely, P. W. 8 and 12 and would be clear from their evidence, during the search of these persons who had escaped from lawful custody and the time of their apprehension, injuries had been caused on their persons owing to tussle. While the appellant Sk. Abdul Razak started running sway from the railway track at Bhadtak when he was chased and there was a tussle with the chasing party, the other appellant, namely, Sk. Raheman was chased when be was concealing himself inside the bushes and in these processes, the two appellants had sustained injuries on their persons. Notice had been taken by the trial Court of the fact that when these two appellants were produced in the Court of the Magistrate, they bad not complained of assault by the police officers. Thus the plea taken by these two appellants that they had been assaulted by the police officers or the jail authorities for which they had made the statements before the Magistrate seemed to be an after-thought. The aforesaid facts and evidence would clearly establish that the confessional statements had been made by these two appellants voluntarily.

16. In order to act upon the retracted confessional statements, such statements must be shown to be voluntary and true. The truth of a confessional statement can be gathered from the other materials in the record. It is not necessary that every part of the confessional statement should be corroborated by the other evidence as in that case, it would not be necessary to call a confession in aid. General corroboration of the two retracted confessions made by the two appellants would be sufficient under the law. An order of conviction can, in appropriate cases, be legally based only on the retracted judicial confession of an accused, but practice and prudence require that a retracted confession, in order to be acted upon, should receive general corroboration.

17. The appellant Sk. Raheman had stated in Ext. 2, that he along with others bent the iron rods of the latrine and thereafter they came out. Gopal caught hold of the neck of the deceased and Samat and the appellant Sk. Razak pounced upon him and took him to a corner where Gopal tied a napkin around the neck of the deceased which he (the appellant Raheman) had supplied and all killed the deceased and the appellant Razak gave the death blow with the wooden rafter on the head of the deceased. The other appellant Sk. Abdul Razak had stated in his confessional statement (Ext. 27) that prior to the date of occurrence, he had planned with Gopal and Samar to ecape from the jail and during the night of occurrence, the appellant Sk. Raheman came out from the cell through a latrine. Gopal and Samar caught hold of the deceased-Warder who was sleeping and he was lifted to a corner of ten compound, Gopal snatched away the keys and opened the lock of the ward and thereafter, removed the pipe rod and assaulted the deceased and strangulated him and he (Sk. Abdul Razak) had given blows on his head with the woodan rafter. Thus these two appellants have, in clear terms, admitted to have killed the deceased with others.

18. The doctor (P. W. 1) had found a towel tied around the neck of the deceased. Injuries had been noticed by the doctor on the head of the deceased which could be caused by a wooden rafter (M. O. II) which was lying near the deceased. The manner in which the deceased was done to death, as stated by these two appellants in their confessional statements, tallied with the evidence of the doctor (P. W. 5). The doctor had noticed two lacerated wounds on the head. A towel had been tied around the neck above the thyroid cartilege and on its removal, he had noticed a ligature mark. The membranes over the left temporal lobe were ruptured and portions of brain had come out through it. The left temporal lobe of the brain was lacerated and a portion of it had passed through the ruptured membrane. The pleura was congested. There had been leceration of mucous membrane of the larynx. Both the lungs had collapsed. He had conducted the post mortem examination on the 10th August, 1978 at 2.33 p. m and had opined that the death had occurred within 24 hours prior to it due to asphyxin caused by strangulation and head injury to the brain. According to him, the ante mortem injuries were sufficient in the ordinary course of nature to cause the death of the deceased. It is thus found that the confessional statements made by the two appellants have received sufficient general corroboration in order to be acted upon and made the foundation of an order of conviction.

19. Regard being had to the nature of the injuries noticed by the doctor on the person of the deceased and the manner in which he was done to death, there could be no doubt that the assailants had, with the intention of causing the death of the deceased, caused injuries sufficient in the ordinary course of nature to cause death. They would be liable to be convicted for committing the offence of murder.

20. From the acts of the two appellants and their companions as indicated above and their conduct preceding, attending and subsequent to the occurrence, it would be clear that the two appellants and their companions had shared the common intention to commit the murder of the deceased and had committed the murder of the deceased. Instead of convicting the appellants Sk. Raheman and Sk. Abdul Razak under Section 302 of the Code, it would be legal and appropriate, in the circumstances of the case, to convict them under Section 302 read with Section 34 of the Code, as rightly submitted by the learned Standing Counsel.

21. In the result, Criminal Appeal No. 122 of 1981 is allowed and the order of conviction and sentence passed against the appellant Antaryami alias Antarjyami Patra under Section 223 of the Indian Penal Code is set aside. Jail Criminal Appeal Nos. 187 and 201 of 1981 are allowed in part. The order of conviction and the sentences passed against the appellants Niranjan Rai Das and Makar Jena under Section 224 of the Indian Penal Code are maintained. The order of conviction and the sentences passed against these two appellants under Section 302 read with Section 149 of the Indian Penal Code are set aside, Criminal Appeal No. 158 of 1981 and Jail Criminal Appeal No. 185 of 1981 preferred by the appellant Sk. Raheman and Jail Criminal Appeal No. 186 of 1981 preferred by the appellant Sk. Abdul Razak are dismissed subject to the alternation in the order of conviction with regard to the commission of the offence of murder and in lieu of the order of conviction recorded against them under Section 302 of the Indian Penal Code, each of these two appellants is convicted under Section 302 read with Section 34 of the Indian Penal Code. The sentences passed against them are maintained. In exercise of the revisional jurisdiction of this Court, the order of conviction and the sentences passed against the non-appealing convict Niranjan Dehury under Section 302 read with Section 149 of the Indian Penal Code are set aside. The appellants Niranjan Rai Das and Makar Jena be set at liberty forthwith. The non-appealing convict Niranjan Dehury be also set at liberty forthwith in connection with this case.

22. Before we part with these appeals, we would like to make it clear that the findings recorded by us shall govern the appeals which we have heard and disposed of and shall not be taken into consideration in a trial, if any, against the absconding accused persons and the trial Court shall reach its own conclusion on the evidence led before it. without being influenced by the findings recorded in this judgment.